Miguel Mendoza v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-3568
MIGUEL MACIAS MENDOZA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States,
Respondent.
On Petition for Review of a Final Removal Order of
the U.S. Department of Homeland Security.
A036 168 559.
ARGUED NOVEMBER 28, 2017 — DECIDED MAY 31, 2018
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. In 1995, Miguel Macias Mendoza
(“Macias”) reentered the United States after having been
removed only weeks earlier. When he came to the attention of
the government more than twenty years later, a deportation
officer for U.S. Immigration and Customs Enforcement (“ICE”)
2 No. 16-3568
determined that Macias had illegally reentered the United
States and was subject to reinstatement of the prior removal
order. Macias raises a purely legal challenge to this conclusion,
contending that, because his reentry was “procedurally
regular,” he was not subject to reinstatement but was instead
entitled to a full hearing before an immigration judge. We deny
the petition for review.
I.
Macias, a native and citizen of Mexico, entered the United
States with his family as a lawful permanent resident in 1976
at the age of six. In 1990, he was convicted in state court of
attempted aggravated criminal sexual assault, aggravated
battery, and burglary. While in prison for those crimes, he was
also convicted of possession of a weapon by a felon. The
Immigration and Naturalization Service (“INS”) instituted
removal proceedings against him while he was in prison,
asserting that his convictions qualified as crimes involving
moral turpitude, rendering him removable.1
In 1993, an Immigration Judge ordered Macias removed
from the United States to Mexico. The order also prohibited
Macias from returning to the United States for five years unless
1
Congress transferred the functions of the former INS to the Department
of Homeland Security (“DHS”) on March 1, 2003. The transfer does not
affect any legal issue in the case, and the DHS did not exist during any of
the original administrative proceedings. See United States v. Suarez, 664 F.3d
655, 656 n.1 (7th Cir. 2011). We will use the current term, “removable”
rather than the word “deportable,” which was in use at the time of Macias’s
original proceedings. See Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir.
2007) (“deportable” is synonymous with “removable”).
No. 16-3568 3
he obtained permission from the Attorney General. See 8 U.S.C.
§ 1182(a)(9)(A) (providing for a five-year period of inadmissi-
bility unless the Attorney General has consented to the alien’s
reapplying for admission).2 The Board of Immigration Appeals
(“BIA”) upheld the order, and in March 1995, Macias was
removed to Mexico.
Macias did not remain there for long. The record contains
no corroboration of when, how or where he crossed the border,
but according to Macias, in April 1995, within weeks of his
removal, he reentered the United States near Reynosa, Mexico.
Macias returned to the United States purportedly to care for his
young son who had been seriously injured in a car accident.
Instead of seeking the consent of the Attorney General, he
asserts that he approached a border inspection point in Texas
prepared to offer his name and Social Security number. He
claims that he encountered two border officers who waved him
into the United States without questioning him or asking to see
travel documents, instead greeting him with a friendly,
“Welcome home.” He returned to Chicago and remained there
for twenty-one years. He made no attempt during that time to
bring his immigration status into compliance with the law.
In July 2016, Macias was arrested and charged with
aggravated driving under the influence of alcohol. While that
2
At the time Macias was first removed in 1995, the statute then in effect
required a previously removed alien to seek permission for readmission
from the Attorney General. See 8 U.S.C. § 1182(a)(6)(B) (1995). The current
version of the statute and the accompanying regulations are substantively
identical to the law in effect in 1995. See 8 U.S.C. § 1182(a)(9)(A) (2013). We
will refer to the current versions of the relevant statutes herein.
4 No. 16-3568
charge was pending, DHS served him with a Notice of In-
tent/Decision to Reinstate Prior Order of Removal. Citing
8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 as authority, the
Notice apprised Macias that DHS intended to reinstate the 1993
order that authorized his 1995 removal because Macias had
illegally reentered the United States on an unknown date at an
unknown place. The Notice provided that he could contest the
determination that he illegally reentered and was subject to
removal by reinstatement by providing an oral or written
statement, but that he had no right to a hearing before an
immigration judge. In a letter issued a few days later, ICE
again invited Macias or his representative to make an oral or
written statement in opposition to the contemplated reinstate-
ment.
Macias opted for a written statement submitted by counsel.
In the statement, counsel argued that Macias’s reentry into the
United States was lawful and thus did not meet the standard
for reinstatement under section 1231(a)(5). In particular,
Macias presented himself for inspection at a border checkpoint,
did not deceive or attempt to deceive anyone, and was waved
in by border guards. Counsel asserted that under the accompa-
nying regulations and in light of Matter of Quilantan, 25 I & N
Dec. 285 (BIA 2010), Macias’s “procedurally regular” entry was
lawful. Counsel noted that the Seventh Circuit had yet to rule
on whether a procedurally regular entry could constitute an
unlawful one for purposes of reinstatement, but conceded that
other circuits had concluded that procedurally regular but
substantively unlawful entries were unlawful for reinstatement
purposes. Those cases were distinguishable, counsel asserted,
because in each case the alien had engaged in some form of
No. 16-3568 5
fraud during the reentry process. Counsel also asked that ICE
exercise prosecutorial discretion to allow Macias to remain in
the country, asserting that he is “not an enforcement priority
given the compelling and exceptional factors in his case, and
his eligibility for other relief.” Administrative Record at 63.
An ICE deportation officer then issued a decision rejecting
Macias’s arguments and reinstating the prior order of removal.
The deportation officer found that Quilantan interpreted the
word “admitted” as the term is used for adjustment of status,
and in that context, the word denoted only procedural regular-
ity. See 8 U.S.C. § 1255 (providing for adjustment of status of
nonimmigrant to that of person admitted for permanent
residence). Compliance with substantive legal requirements
was not, therefore, required to be lawfully admitted for
adjustment of status. But in the case of reentry after having
been previously removed, the deportation officer concluded
that substantive compliance was necessary to avoid “illegal
reentry” under section 1231(a)(5). The deportation officer cited
Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. 2011), in
support, noting that the factual circumstances were very
similar, and that the Tenth Circuit had concluded that proce-
dural regularity was not sufficient for lawful reentry. The
deportation officer found that Macias had never sought the
permission of the Attorney General to return, and thus his
reentry was unlawful and the prior order of deportation would
be reinstated. Finally, prosecutorial discretion was denied due
to the serious nature of Macias’s past crimes, his admitted
membership in the Latin Kings, and the nature of his recent
arrest for aggravated driving under the influence. Macias
6 No. 16-3568
petitions for review of the decision to reinstate the prior order
of deportation.
II.
We review de novo any questions of law regarding the
interpretation of the Immigration and Nationality Act (“INA”).
Borrego v. Mukasey, 539 F.3d 689, 691 (7th Cir. 2008). “If
Congress has directly spoken to the precise question at issue,
then a court must follow that clear guidance.” Cece v. Holder,
733 F.3d 662, 669 (7th Cir. 2013) (citing Chevron, U.S.A., Inc. v.
Natural Resources Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).
But if a statute is silent or ambiguous, the court must defer to
authoritative interpretations of the law by the applicable
agency. Cece, 733 F.3d at 669; Chevron, 467 U.S. at 844. In the
context of interpreting ambiguous provisions in the INA, this
typically means “giving Chevron deference to the Board's
reasonable interpretation set forth in precedential opinions
interpreting the statute.” Cece, 733 F.3d at 668.
The government primarily asserts that the statute is not
ambiguous and that the plain language controls the outcome
here. But the government also asserts that, in the absence of
Board authority addressing the precise question at issue here,
this court should defer to the statutory interpretation of the
deportation officer who drafted the Notice of Reinstatement of
Removal Order in this case. The government cites Skidmore v.
Swift, 323 U.S. 134, 140 (1944), and Bailey v. Pregis Innovative
Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010), in support.
Those cases provide only that we may resort for guidance to
agency opinion letters and interpretations by an agency
administrator to the extent that those opinions have the
No. 16-3568 7
“power to persuade.” Skidmore, 323 U.S. at 140; Bailey, 600 F.3d
at 750–51. In determining whether such an opinion letter has
the power to persuade, we typically examine “the thorough-
ness evident in its consideration, the validity of its reasoning,
[and] its consistency with earlier and later pronouncements[.]”
Skidmore, 323 U.S. at 140; Arobelidze v. Holder, 653 F.3d 513, 520
(7th Cir. 2011). Although we are sometimes willing to grant
Skidmore deference to non-precedential decisions by single
members of the Board of Immigration Appeals, the govern-
ment has not cited and we have not been able to find any
instance of providing Skidmore deference to a thinly-reasoned
decision by a single deportation officer, and we decline to do
so here. Sanchez v. Holder, 757 F.3d 712, 717 (7th Cir. 2014)
(finding that a non-precedential decision by a single member
of the Board is entitled to respect but only to the extent that it
has the power to persuade); Arobelidze, 653 F.3d at 520 (same).
And as will be apparent below, there is no need to resort to the
interpretation offered by the deportation officer.
We begin with the statutory language:
If the Attorney General finds that an alien has
reentered the United States illegally after having
been removed or having departed voluntarily,
under an order of removal, the prior order of re-
moval is reinstated from its original date and is not
subject to being reopened or reviewed, the alien is
not eligible and may not apply for any relief under
this chapter, and the alien shall be removed under
the prior order at any time after the reentry.
8 No. 16-3568
8 U.S.C. § 1231(a)(5). Macias does not dispute that he reentered
after he was previously removed and that he did so during the
five-year inadmissibility period without seeking the requisite
consent from the Attorney General. The only point of dispute
in interpreting the statute is whether Macias reentered
“illegally.”
That term is not defined in the statute, and so Macias
contends that we should turn to the implementing regulation:
(a) Applicability. An alien who illegally reenters the
United States after having been removed, or having
departed voluntarily, while under an order of
exclusion, deportation, or removal shall be removed
from the United States by reinstating the prior order.
The alien has no right to a hearing before an immi-
gration judge in such circumstances. In establishing
whether an alien is subject to this section, the immi-
gration officer shall determine the following:
(1) Whether the alien has been subject to a prior
order of removal. …
(2) The identity of the alien, i.e., whether the alien is
in fact an alien who was previously removed …
(3) Whether the alien unlawfully reentered the
United States. In making this determination, the
officer shall consider all relevant evidence, including
statements made by the alien and any evidence in
the alien's possession. The immigration officer shall
attempt to verify an alien's claim, if any, that he or
No. 16-3568 9
she was lawfully admitted, which shall include a
check of Service data systems available to the officer.
8 C.F.R. § 241.8. Macias specifically cites the last sentence of
subsection (a)(3) in support of his argument that a procedur-
ally regular entry is not unlawful, focusing on the directive to
determine whether the alien was “lawfully admitted.”
In particular, Macias contends that the words “admitted”
and “admission” have well-settled meanings in immigration
law. Section 1101(a)(13)(A) of the Act provides:
The terms “admission” and “admitted” mean, with
respect to an alien, the lawful entry of the alien into
the United States after inspection and authorization
by an immigration officer.
Macias argues that Congress therefore expressly connected the
concept of “admission” with “lawful entry.” Macias presented
himself for inspection and was authorized to enter by the two
border guards who waved him into the country in 1995, he
argues, and therefore his entry was lawful. And after all, he
argues, there would be no need for an immigration officer to
consider statements made by the alien or any evidence in the
alien's possession (as provided in the regulation) if a simple
check of DHS data systems could answer the question of
lawfulness. But the regulation does not establish a definition
for “illegal” reentry or a substantive standard for illegality in
the reinstatement context. The regulation simply instructs DHS
officials on how to go about collecting information needed to
make the reinstatement determination. Nothing in the regula-
tion renders the word “illegally” ambiguous. Moreover,
10 No. 16-3568
Macias goes a step too far in trying to equate “admitted” with
lawfully admitted.
Macias turns to Matter of Quilantan, 25 I & N Dec. 285 (BIA
2010), in support. That case involved a citizen of Mexico who
entered the United States without a visa. She approached the
border as a passenger in a car, and although an immigration
inspector asked the driver whether he was an American
citizen, he did not ask Quilantan any questions. The inspector
then waved the car through. Quilantan later married a U.S.
citizen and applied for adjustment of status under 8 U.S.C.
§ 1255. That provision allows aliens who were “inspected and
admitted or paroled into the United States” to apply for
adjustment of status. DHS instead charged her with removabil-
ity, and an Immigration Judge found that she was statutorily
ineligible for adjustment because she had not been “admitted”
to the United States within the meaning of
section 1101(a)(13)(A) of the INA. The Immigration Judge
concluded that a procedurally regular admission was insuffi-
cient to meet that standard.
Quilantan petitioned for review. The Board noted that, over
the years, Congress had loosened the requirements for appli-
cants for adjustment of status, dropping the requirement of
lawful admission and maintenance of non-immigrant status,
and eventually requiring only inspection and admission or
parole into the United States. That meant that, as of 1980, “as
long as an alien’s entry into the United States as a nonimmi-
grant was procedurally proper (i.e., the alien underwent an
inspection by an immigration officer, who subsequently
admitted the alien), the alien could seek adjustment of status
under” section 1255. Quilantan, 25 I & N Dec. at 289–90. The
No. 16-3568 11
Board was thus confronted only with the question of whether
that interpretation remained valid after the enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”). The Board held that, “by themselves, the
terms ‘admitted’ and ‘admission,’ as defined in section
101(a)(13)(A) of the Act, continue to denote procedural
regularity for purposes of adjustment of status, rather than
compliance with substantive legal requirements.” Quilantan, 25
I & N Dec. at 290. Because she presented herself for inspection,
made no knowing false claims to citizenship, was asked no
questions by immigration authorities and was allowed into the
country, Quilantan was thus eligible for adjustment of status.
By its own terms, Quilantan defined “admission” and
“admitted” only when used “by themselves” for “purposes of
adjustment of status” under section 1255. 25 I & N Dec. at 290.
Nothing in Quilantan renders the word “illegally” ambiguous
in section 1231(a)(5), which applies not to adjustment of status
but to reinstatement of removal orders for persons previously
removed. By reentering the United States without the requisite
permission after having been previously removed, Macias
violated the predecessor version of section 1182(a)(9)(A). The
government asserts that Macias thus reentered the United
States illegally within the plain meaning of section 1231(a)(5).
That is, his reentry was substantively illegal even if it was
arguably procedurally regular. Even Macias concedes that,
“[i]n common parlance, Macias’s reentry might very well be
described as ‘illegal.’” Petitioner’s Opening Brief at 2.
The government cites the Tenth Circuit’s opinion in
Cordova-Soto in support of its position that Macias’s reentry
without the required permission from the Attorney General
12 No. 16-3568
was illegal. Like Macias, Cordova-Soto lived in the United
States as a lawful permanent resident when she was a child.
She later committed two crimes involving moral turpitude.
Like Macias, she was removed from the United States with a
warning not to return for (in her case) ten years without
obtaining special permission from the Attorney General. And
like Macias, she returned anyway, without the requisite
permission. She came through the border as one of three
passengers in a taxi. The border inspector asked all of the
passengers for identification. While Cordova-Soto “pretended
to look for ID,” the inspector moved onto other passengers,
inspected the trunk, and then waved the car into the United
States. 659 F.3d at 1030–31.
Cordova-Soto challenged the DHS determination that she
was subject to reinstatement of the prior order of removal,
claiming, in part, that her reentry was not illegal because it was
procedurally regular. Like Macias, Cordova-Soto relied on
Quilantan. The Tenth Circuit rejected Cordova-Soto’s argu-
ment, noting that Quilantan interpreted the term “admitted” as
it is used in section 1255(a), that the holding was limited to the
terms “admitted” and “admission” when used by themselves,
and that Quilantan focused on the long history of requiring
only a procedurally regular entry for eligibility for adjustment
of status. In contrast, Congress in section 1231(a)(5) did not use
the term “admitted” by itself or otherwise. Congress:
chose instead to hinge eligibility for reinstatement
on illegal reentry, the plain meaning of which is a
reentry in violation of the law. Nor do we believe
that the BIA’s unusual construction of “lawful
entry” in the definition of “admitted” in
No. 16-3568 13
§ 1101(a)(13)(A)—which ignores the plain meaning
of that term—reasonably extends beyond its use in
that definition.
Cordova-Soto, 659 F.3d at 1034. The court thus distinguished
“lawful entry” for purposes of determining whether an alien
has been admitted under section 1255(a), from illegal reentry
by a previously removed alien, which is at issue in section
1231(a)(5).
The court also noted that an alien who has previously been
removed is subject to criminal penalties if she thereafter
“enters, attempts to enter, or is at any time found in, the United
States,” unless the Attorney General has expressly consented
in advance to her applying for readmission, or she establishes
that she was not required to obtain the Attorney General’s
advance consent. See 8 U.S.C. § 1326(a). In short:
We cannot conclude that a previously removed
alien’s procedurally regular entry could be, at the
same time, a legal reentry for purposes of
§ 1231(a)(5), thereby precluding reinstatement of her
removal order, yet also an illegal reentry subjecting
her to criminal prosecution under § 1326(a).
Cordova-Soto, 659 F.3d at 1034.
We find the reasoning of our sister circuit persuasive and
see no reason to depart from it. Although Congress has made
it progressively easier for some aliens to apply for adjustment
of status under section 1255, lawmakers have also chosen to
make it easier under section 1231(a)(5) to reinstate prior
removal orders against those who have illegally reentered the
14 No. 16-3568
United States after having previously been removed. See
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33–34 (2006) (describ-
ing the history of the reinstatement provisions); Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir. 2007) (noting
that Congress' purpose behind IIRIRA was to enable the
prompt admission of those who are entitled to be admitted, the
prompt exclusion or removal of those who are not so entitled,
and the clear distinction between these categories). The
enactment of IIRIRA, effective April 1, 1997, has provided for
the broadest use of reinstatement, applying to all illegal
reentrants, and explicitly insulating removal orders from
review, while also generally foreclosing discretionary relief
from the terms of the reinstatement order. Fernandez-Vargas,
548 U.S. at 34–35.
Other circuits have also treated a reentry after removal and
without the Attorney General’s consent (during the time
period that consent is required) as an illegal reentry for the
purposes of reinstatement under section 1231(a)(5). See e.g.,
Anderson v. Napolitano, 611 F.3d 275, 278–79 (5th Cir. 2010)
(previously removed alien who reentered under new, married
name and received passport stamp but did not obtain neces-
sary permission from Attorney General, reentered unlawfully
and was subject to reinstatement); Morales-Izquierdo, 486 F.3d
at 498 (previously removed alien who returned to the United
States unnoticed without obtaining required permission from
Attorney General illegally reentered for reinstatement pur-
poses); Cordova-Soto, 659 F.3d at 1035 (collecting cases). In some
of these cases, the alien either conceded that the reentry
without the permission of the Attorney General was unlawful
or the alien engaged in some act of deception during the
No. 16-3568 15
purportedly “procedurally regular” reentry. For example, as
we noted above, Cordova-Soto pretended to search for
identification as the border officer inspected the vehicle and its
other occupants. Anderson entered under a new (and mislead-
ing even though legitimate) married name. These small
deceptions are not relevant to the core analysis because it is not
procedural regularity that is at issue; rather it is substantive
illegality that subjected each person to reinstatement.
In fact, prior to deciding Cordova-Soto, the Tenth Circuit
found a procedurally regular entry to be unlawful for reinstate-
ment purposes, although the alien had not raised the issue of
procedural regularity. See Lorenzo v. Mukasey, 508 F.3d 1278,
1280–83 (10th Cir. 2007) (alien who passed through an official
point of entry in the back seat of a car, without immigration
officials examining or questioning her documentation, entered
unlawfully for reinstatement purposes). The Tenth Circuit
acknowledged that Lorenzo had not raised the statutory
argument regarding procedurally regular entry on which
Cordova-Soto relied, but the court nonetheless favorably cited
and relied on Lorenzo in concluding that Cordova-Soto’s
reentry was unlawful. Cordova-Soto, 659 F.3d at 1035.
In sum, the statute providing for reinstatement for aliens
who have reentered “illegally” after previously having been
removed is not ambiguous. A person who reenters without the
consent of the Attorney General during the required period
violates at least two laws and therefore reenters illegally. See
8 U.S.C. § 1326(a) and 8 U.S.C. § 1182(a)(9)(A). Indeed, section
1326(a) subjects the violator to significant criminal penalties,
and Congress could not have intended for such a reentry to be
considered lawful merely because a border inspector mistak-
16 No. 16-3568
enly waved the violator into the country. Nothing in the
accompanying regulation is contrary to that plain-language
interpretation. Finally, we see no reason to depart from the
Tenth Circuit’s well-reasoned decision.
PETITION DENIED.